Publication Details

Gullett, W, Up the creek and out at sea: the resurfacing of the public right to fish, Maritime Studies, 146 (January-February), 2006, 1-11.


The ancient common law public right to fish has had increasing resonance since 2001 when the High Court in Yarmirr denied the existence of asserted exclusive offshore native title rights in large part because of the “fundamental inconsistency” between them and the public right to fish. The Yarmirr decision also established that non-exclusive offshore native title rights must be consistent with the public right. This creates the potential for litigation where it is asserted that actions of native title holders have infringed the public right or where recreational anglers purportedly exercising the public right in an area subject to a native title determination stray beyond the limits of the right. The public right to fish also continues despite exclusive indigenous ownership rights over the foreshore (to the low water mark) where ownership rights exist under legislative land grants. Far from being a matter of mere historical curiosity, the public right to fish has resurfaced with prominence with respect to its intersection with indigenous fishing rights. Further, far from being regulated out of existence, in some jurisdictions the public right to fish has been enshrined in legislation. In NSW it has even been extended to non-tidal rivers and creeks. This paper examines the content of the public right to fish and assesses its enduring significance in light of Yarmirr and post-Yarmirr offshore native title determinations. It argues that the confusion surrounding the interaction between public and indigenous fishing rights may necessitate Parliamentary action to allocate access rights vis-a-vis public and indigenous fishers.

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